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Sepehry-Fard v. Department Stores National Bank

United States District Court, N.D. California

February 14, 2014

FAREED SEPEHRY-FARD, Plaintiff,
v.
DEPARTMENT STORES NATIONAL BANK, et al., Defendants

Re: Dkt. Nos. 80, 83, 84, 90, 92, 93.

Fareed Sepehry-Fard, Plaintiff, Pro se, Saratoga, CA.

For Department Stores National Bank, Citibank South Dakota N.A., Defendants: Marcos D. Sasso, LEAD ATTORNEY, Attorney at Law, Los Angeles, CA; Raymond Alexander Garcia, Stroock and Stroock and Lavan LLP, Los Angeles, CA.

For Michael S Hunt, Attorney of Hunt & Henriques, Anthony Dipiero, Attorney of Hunt & Henriques, Donald Sherrill, Attorney of Hunt & Henriques, Larry Strowbridge, process sever, Defendants: Tomio Buck Narita, LEAD ATTORNEY, Christopher M Spain, Simmonds and Narita LLP, San Francisco, CA.

For Patricia M. Lucas, Judge at Santa Clara Superior Court, Mary Arand, Judge at Santa Clara Superior Court, Mark H. Pierce, Judge at Santa Clara Superior Court, Santa Clara County Court, Defendants: Kevin P. McLaughlin, LEAD ATTORNEY, Meyers Nave Riback Silver & Wilson, Oakland, CA.

For Leroy D. Baca, Defendant: Amber Ann Logan, LEAD ATTORNEY, Nelson and Fulton, Los Angeles, CA.

OPINION

Page 985

ORDER GRANTING MOTIONS TO DISMISS; DENYING PLAINTIFF'S MOTIONS

WILLIAM H. ORRICK, United States District Judge.

Currently before the Court are defendants' motions to dismiss plaintiff's Second Amended Complaint (Docket Nos. 80, 83) and plaintiff's motions for leave to amend, to compel, to challenge the Court's jurisdiction, and to reconsider plaintiff's demand

Page 986

that the Court facilitate a grand jury investigation. Docket Nos. 84, 90, 92, 93. These motions are current set for hearing on February 19, 2014. Pursuant to Civil Local Rule 7-1(b), the Court finds these matters appropriate for resolution without oral argument, and hereby VACATES the hearing. The Court recognizes its duty to construe the pleadings of pro se litigants liberally, but for the reasons discussed below, the Court GRANTS defendants' motions to dismiss WITH PREJUDICE and DENIES plaintiff's motions.

BACKGROUND

This case arises out of state court collection proceedings brought against plaintiff Fareed Sepehry-Fard, initiated by defendants Department Stores National Bank (DSNB) and Citibank (" Financial Entities" ), and litigated by defendants Michael S. Hunt, Anthony Dipiero, and Donald Sherrill (" Attorney Defendants" ).[1] On October 4, 2013, the Court dismissed each of the claims asserted against the Financial Entities and Attorney Defendants because the claims: (1) were barred by the Rooker-Feldman Doctrine, (2) were constitutional claims that could not be asserted against these defendants, or (3) failed to allege facts sufficient to state a claim. The Court gave plaintiff leave to amend and provided specific advice on what plaintiff needed to do in order to attempt to state valid claims against these defendants. Docket No. 36.[2]

Plaintiff filed his First Amended Complaint, and defendants again moved to dismiss. On December 13, 2013, the Court granted the defendants' motions to dismiss and dismissed with prejudice defendants Baca and Strowbridge, as well as some of the claims asserted against the Financial Defendants and the Attorney Defendants. Docket No. 74. The Court granted plaintiff leave to amend his TCPA and UCL claims against the Financial Entities, and leave to amend his negligence, FDCPA, TCPA and UCL claims against the Attorney Defendants. Id. at 22-23. Plaintiff was again given very specific instructions on what was missing from his claims and what he needed to allege in order to state claims against these defendants.

Plaintiff filed his Second Amended Complaint (SAC) on December 23, 2014. The Financial Entities and Attorney Defendants now move to dismiss the SAC. Plaintiff has also filed motions seeking various forms of relief.

LEGAL STANDARD

Under Federal Rule of Civil Procedure 12(b)(6), a district court must dismiss a complaint if it fails to state a claim upon which relief can be granted. To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must allege " enough facts to state a claim to relief that is plausible on its face." See Bell A. Corp. v. Twombly, 550 U.S. 544, 556, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A claim is facially plausible when the plaintiff pleads facts that " allow the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." See Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citation omitted). This standard is not akin to a probability requirement, but there must be " more than a sheer possibility that a defendant has acted

Page 987

unlawfully." Id. While courts do not require " heightened fact pleading of specifics," a plaintiff must allege facts sufficient to " raise a right to relief above the speculative level." See Twombly, 550 U.S. at 555, 570.

In deciding whether the plaintiff has stated a claim upon which relief can be granted, the court accepts the plaintiffs allegations as true and draws all reasonable inferences in favor of the plaintiff. See Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987). However, the court is not required to accept as true " allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." See In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008).

Pro se complaints are held to " less stringent standards than formal pleadings drafted by lawyers." See Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). Where a plaintiff is proceeding pro se, the Court has an obligation to construe the pleadings liberally and to afford the plaintiff the benefit of any doubt. See Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985) (en banc). However, pro se pleadings must still allege facts sufficient to allow a reviewing court to ...


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